STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Funeral ) Directors and Embalmers, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3763

) BERNARD POITIER and POITIER ) FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Sharyn L. Smith, Hearing Officer, Division of Administrative Hearings, on January 27, 1984, in Miami, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against Respondent's licenses as funeral director, embalmer and funeral establishment for the reasons set forth in the Administrative Complaint filed July 25, 1983.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Gus Efthimiou, Jr., Esquire

1025 Dupont Building

Miami, Florida 33131

At the final hearing, Cora Holland, the complainant; Barbara Caldwell, a licensed funeral director; Peter Kneski, an attorney consulted by complainant and Providence Padrick, an investigator for the Department, testified for the Petitioner, R. C. Blanton, and Steve Granowiltz testified by deposition for the Petitioner. Ron Myers, an investigator for the Department; Lydia Walker, a funeral home director and nursing home administrator; Timothy McCane, a retired funeral director; Joseph Tanner, director of Miami Rescue Mission; and Bernard Poitier, testified for the Respondent. Respondent's Exhibits 1 through 4 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally,

proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

Upon the evidence presented, the following findings of fact are made:

1. Respondent Poitier is a licensed funeral director and embalmer, having been issued license numbers FE 1641, FD 1456 and EM 1641. Respondent Poitier Funeral Home is a licensed funeral establishment, having been issued license number FH 803.

   
   

2. On the twenty-fifth (25th) day of August, 1982, at approximately 5:00 a.m., Amos Williams, a transient, suffered a heart attack at the Miami Rescue Mission, 716 North Miami Avenue, Miami, Florida. He was transported by the Miami Fire and Rescue squad to Jackson Memorial Hospital where he was pronounced dead at 6:24 a.m. and transferred to the Medical Examiner's office at 7:00 am. on said date.

   
   

3. Cora Holland, the sister of Amos Williams, was informed of the death of her brother on Friday, August 27, 1982, at 7:30 p.m., when she received a call from Reverend Sawyer. Reverend Sawyer asked if she would be coming to Florida, and she told him she would be there late Saturday or early Sunday. Minutes later she received a call from the Medical Examiner's office of Dade County, who informed her of her brother's death again, stating that they had held the body for almost 72 hours, and the law said they could not hold the body longer than

   72 hours. She said she would be in Florida soon, and they responded that they could hold the body a little longer.

   
   

4. On August 28, Saturday, at 9:10 am., Reverend Sawyer called the Medical Examiner's office and stated that Mrs. Holland was coming to Miami on August 29 to make arrangements with the Poitier Funeral Home. Sawyer was advised that if he was acting as her agent the office would accept his signature for the release of the remains since the morgue was overcrowded.

   
   

5. Thereafter, on that same day, Reverend Sawyer called Poitier Funeral Home and told the Respondent that he had communicated with the sister of the deceased. Reverend Sawyer told him that the sister had given him authorization to handle the remains until her arrival in Miami. The Respondent stated that when the sister arrived there if she wanted to use any other funeral establishment the body would be released to such establishment. Further, that if there was a problem financially, that Poitier agreed to furnish free the casket, flowers, clothing, hearse and a family car for the sister if she came, but the grave would have to be paid for by others.

   
   

6. Subsequently, Reverend Sawyer executed and delivered a "Release of Remains" which authorized the release of the body to Poitier Funeral Home and granted permission to embalm and make all necessary preparations for the funeral. This release was furnished to the Medical Examiner and the body was released to the said funeral home. Upon examining the remains at the funeral home, the Respondent found putrefaction had set in. By reason of said condition, embalming was required and necessary to preserve the body for public health reasons.

   
   

7. Ms. Holland arrived in Miami at 4:30 p.m. on August 29, Sunday, and prior to her arrival in Miami had never heard of the Respondent Poitier or the funeral establishment. A friend recommended her to Bain Funeral Home and that

   evening (7:00 or 8:00 p.m.) they arrived at the Bain Funeral Home where the attendant telephoned the funeral director, Barbara Caldwell, who informed Ms. Holland to return to the funeral home on Monday morning. Up through and including Sunday, August 29, 1982, she had given no one authorization to obtain the body, had given no authorization to embalm the body, and no funeral arrangements had been made.

   
   

8. Ms. Holland arrived at the Bain Funeral Home on August 30, Monday, in the morning and discussed with Ms. Caldwell the arranging for release of the body from the medical examiner, which is when Ms. Holland remembers she learned that the body had been released to Poitier Funeral Home, a release she had not authorized. Later that same day, Respondent Poitier telephoned her in a three- way conversation with Barbara Caldwell also on the line. In that conversation, Respondent stated that if she would rather have Bain's Funeral Home handle the body, to come get the body. The Respondent also said he wanted Ms. Holland to pay him $175.00 for embalming the body, to which she responded that she had not authorized him to embalm the body. Respondent then stated to Ms. Holland that if he released the body to Bain's Funeral Home he wanted her to sign a waiver releasing Poitier, the medical examiner and Reverend Sawyer from any liabilities thereafter. At the conclusion of the conversation, Respondent Poitier demanded that she would have to sign this waiver or she would have to pay him $175.00 for embalming the body in order for him to release the body.

   
   

9. Ms. Holland consulted Peter Kneski for legal assistance on August 31, 1984, her problem being that she wanted the body of her relative who had recently passed away to be released to Bain Funeral Home, which body was then located at Poitier Funeral Home. The complicating factor was that there was a demand by Respondent Poitier that Cora Holland pay certain monies to Respondent in order to secure release of the body. Upon Mr. Kneski's calling by telephone the Respondent Funeral Home, he confirmed that the body had been embalmed, and secondly, that Respondent Poitier was insistent that money be paid for reimbursement of expenses in order to have the body released from that funeral home. Mr. Kneski, in his second telephone conversation with Respondent on August 31, 1982, informed the Respondent Poitier of the fact that he was retained as the attorney for Cora Holland concerning the body of Amos Williams, and in his capacity as attorney for Ms. Holland made a request of Respondents to release the body to Bain Funeral Home. Mr. Kneski did not remember if, as a result of this second conversation, the body was released, but the final result was that the body was ultimately released. However, he also testified to recalling that Respondent Poitier told him the body had to be picked up by a specific time and after that time the body would not be released.

   
   

10. Barbara Caldwell, Funeral Director of Bain Funeral Home, first met Cora Holland through a telephone conversation on Sunday, August 29, when Ms. Holland requested that Bain Funeral Home handle the funeral arrangements for her brother. Ms. Caldwell's memory is that she then called the Medical Examiner's office and learned that the body had been previously released to Poitier Funeral Home. Ms. Holland told her that such authorization for release had not been given by herself.

    
    

11. On Tuesday, August 31, 1982, Ms. Caldwell talked with Respondent Poitier by telephone after Ms. Holland had returned from her visit with the attorney. Respondent Poitier still maintained his posture of not releasing the body without the payment of $175.00 and the release of liability. On that Tuesday evening another telephone coversation occurred between Caldwell and Poitier, the conversation occurring after Ms. Holland stated she had been advised by the attorney not to sign anything but a release of remains, and the

    conversation relating to this advice. Poitier's response was the same as in the past, i.e., that he wanted a release of liability, release of remains and

    $175.00. The final conversation occurred on Wednesday, September 1, in the evening when Poitier told them that she should come get the body. The body was then picked up.

    
    

12. The contract between Holland and Bain Funeral Home was entered into on September 1, 1981, for funeral arrangements. Holland and Bain did not attempt to physically obtain the body until September 1 due to the fact that prior to that time the Respondent had not been furnished with a satisfactory release.

    
    

13. Providence Padrick, Investigator for Petitioner, testified to statements made to her by Respondent Poitier during the course of the investigation. Poitier related to her that he was contacted by Reverend Sawyer, who reported himself to be a friend of the family of Ms. Holland, with Reverend Sawyer affirming he represented Ms. Holland, and that the relationship between Sawyer and the deceased was one of friendship. The authorization for release was signed by Reverend Sawyer, and Poitier said he had gone to Reverend Sawyer's home and asked him to sign the release and then Poitier proceeded to have one of the staff members obtain the body from the Medical Examiner's office. This was all accomplished by August 28, 1982. When he was asked if he had requested any type of payment for services, when the family demanded the release, he denied the $175.00 request, but he did state that he contacted Barbara Caldwell of Bain Funeral Home and told her he would release the deceased if Ms. Holland would sign authorization as next of kin and if she would sign an affidavit releasing his funeral home of any responsibility -- two separate documents. He also admitted that the funeral home had embalmed the deceased and, when questioned as to why this information had not been included in the monthly affidavit of cases embalmed, he said he could not recall who did the embalming.

    
    

14. The deposition testimony of the Board of Funeral Directors and Embalmers Executive Director, R. C. Blanton, established that the affidavits of cases embalmed and bodies handled for the months of August and September, 1982, for the Respondent Funeral Home did not list the case of Amos Williams. It was not until March, 1983, that the affidavit filed with the Board of Funeral Directors and Embalmers listed the fact that Amos Williams had, indeed, been embalmed at that funeral home (Petitioner'S Exhibit 8).

    
    

15. The testimony of Steve Granowitz, former inspector for the Department of Professional Regulation, established that an inspection was conducted of the Respondent Funeral Home on March 18, 1983. It was learned through that inspection that Respondents failed to conspicuously display the prices where caskets were displayed and no itemized retail price list was available to the public for its use as set forth in Section 470.035, Florida Statutes. Indeed, Respondent Poitier stated to the inspector that he did not know of the price list regulation and would get a price list made in the next 5-6 weeks. When Granowitz returned in August, 1983, he found that the caskets were in the casket room with prices posted as required.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

17. The applicable disciplinary sections of the Funeral Practice Act reveal the following:

    470.036 Disciplinary proceedings.--

    1. The following acts constitute grounds for which the disciplinary actions in sub section

    2. may be taken:

    * * *

    (e) Making or filing a report or record which the licensee knows to be false, inten tionally or negligently failing to file a

    report required by state, local or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed funeral director or embalmer.

    * * *

    1. Fraud or deceit, or negligence, incom petency, or misconduct, in the practice of funeral directing or embalming.

    2. A violation or repeated violation of this chapter or of chapter 455 and any rules promul gated pursuant thereto.

    3. Violation of a lawful order of

    the board or department previously entered in a disciplinary hearing or failure to comply with a lawfully issued subpoena

    of the board or department.

    (k) Misrepresentation or fraud in the conduct of the business of or profession of, the licensee.

    1. Violation of any state law or rule

       or municipal or county ordinance or regula tion affecting the handling, custody, care or transportation of dead bodies.

    2. Refusing to surrender promptly the custody of, a dead human body upon the express

    order of the legally authorized person; however, this provision shall be subject to any state laws or rules governing custody or transpor tation of deceased human bodies.

    (r) Taking possession of a dead human body without first having obtained written or oral permission from a legally authorized person.

    (t) Embalming a deceased human body with out first having obtained written or oral permission from a legally authorized person; however, washing and other public health pro cedures, such as closing of the orifices by placing cotton soaked in a disinfectant in such orifices until authorization to embalm is received, shall not be precluded.

    * * *

    (w) Solicitation by the licensee, or his agent, employee, or assistant, through the use

    of fraud, undue influence, intimidation, over reaching, or other form of vexatious conduct.

    
    

18. Petitioner has failed to meet its burden of proof that Respondents took possession of the remains of Amos Williams without first obtaining legal authorization to do so. There was evidence that Respondents utilized the authorization of Reverend Sawyer, who stated that he had the permission to act on behalf of the family until their arrival in Miami, in obtaining the release of the body from the office of the Medical Examiner. There was no evidence presented that Respondents knew or should have known that Reverend Sawyer did not have such authorization, albeit the testimony is clear and conclusive that in fact Reverend Sawyer did not have such authorization. As such, a violation of Section 470.036(1)(r) , Florida Statutes, has not been proven.

    
    

19. It is, further, clear that the Petitioner failed to meet its burden relating to the allegation that the Respondents failed to furnish for the retention of Cora Holland a written agreement listing prices of categories of services and merchandise purchased, since in fact no contract was ever reached between the parties.

    
    

20. The Respondents embalmed the deceased without having obtained written or oral permission from an authorized person. The legally authorized representative of the deceased never gave authorization to Respondents to embalm the body. Respondent was under no compulsion to immediately remove the body from the office of the Medical Examiner on Saturday, and could have waited until he received authorization from the legally authorized representative, or a person acting on Ms. Holland's behalf, to embalm the body. As such, a violation of Section 470.036 (1)(t) (embalming a deceased human body without first having obtained written or oral permission) has been demonstrated. However, this conclusion must be considered in light of the circumstances necessarily surrounding the burial of indigents. The Respondent received permission to bury Amos Williams from local authorities having responsibility for disposal of deceased indigents. The Respondent embalmed Williams because of the condition of his body. Under these circumstances, a violation, albeit, a technical violation of Section 470.036(1)(t), Florida Statutes, occurred in this case since no showing has bean made that the Respondent intentionally embalmed Williams without obtaining what he knew or should have known was authorized permission to perform such procedure.

    
    

21. The Respondents failed to include the embalming of the deceased Williams on the monthly affidavit of cases embalmed and bodies handled for the appropriate months. As such, a violation of Section 470.036(1)(e), has been demonstrated.

    
    

22. The Petitioner failed to demonstrate by clear and convincing evidence that the Respondent refused to surrender promptly the custody of a dead human body in violation of Section 470.036(1)(p), Florida Statutes. The Respondent was not furnished with a signed release by the next of kin until September 1, 1982, when the body was released.

    
    

23. By the Respondent's failure to conspicuously display the prices where caskets were displayed and by failing to have an itemized price list, a violation of Rule 21J-2l.03, Florida Administrative Code, and Section 470.036(1)(h), Florida Statutes, was established.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered finding the Respondent guilty of violating Sections 470.036(1)(t), 470.36(1)(e), Florida Statutes, and Rule 21J-2l.03, Florida Administrative Code, and Section 470.036(1)(h), Florida Statutes, not guilty of the remaining charges, and imposing a $1,000 administrative fine.

DONE and ENTERED this 18th day of July, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1984.

COPIES FURNISHED:

Joseph W. Lawrence, Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gus Efthimiou, Jr., Esquire 1025 Dupont Building

Miami, Florida 33131

Edward O'Dowd, Executive Director

Board of Funeral Directors and Embalmers

111 East Coastline Drive Room 507

Jacksonville, Florida 32202

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0030409 (DPR)

83-3763 (DOAH)

BERNARD POITIER,

(EM 1641, FD 1456, FE 1641) POITIER FUNERAL HOME, (FH 803)

Respondent.

/

FINAL ORDER

This cause came before the State of Florida Board of Funeral Directors and Embalmers at its duly noticed meeting of September 10, 1984, in Daytona Beach, Florida, for final consideration. Upon a complete review of the entire record, including the Recommended Order of the Hearing Officer and Exceptions filed thereto, the transcript, and all other pertinent pleadings, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. On or about July 25, 1983, an Administrative Complaint, copy attached, was filed and subsequently served upon the Respondent. Upon filing of an Election of Rights, the matter was referred to the Division of Administrative Hearings pursuant to 120.57(1), F.S.

   
   

2. On or about January 27, 1984, formal proceedings were conducted by the Division. A Recommended Order dated July 18, 1984, attached, was entered. Exceptions to that Order were filed by the Petitioner on or about August 8, 1984, and by the Respondent on the date set for final hearing, September 10, 1984.

   
   

3. The parties stipulate that Respondent was in fact not displaying caskets at the time of the violation alleged in the Administrative Complaint and therefore was not required to conspicuously display prices pursuant to 470.033(4), F.S. and Rule 21J-21.03, F.A.C. In that regard, the Board incorporates and adopts as its own the Findings of Fact contained in the attached Recommended Order with the exception of the finding in paragraph 5 that" ... Respondents failed to conspicuously display the prices where caskets were displayed

   CONCLUSIONS OF LAW

   
   

4. The Board hereby adopts the Petitioner's Exceptions to Conclusions of Law, attached.

   
   

5. The Respondents' Exceptions to Conclusion of Law, attached, are hereby adopted and incorporated herein with the exception that paragraph 2 and 3 therein are combined to read:

   
   

   Having so found that Reverend Sawyer granted permission to embalm the body and that the Medical Examiner released the body to Respondents, and further finding that embalming was required and necessary to preserve the body for public health reasons, the Hearing Officer should not have concluded that a violation of Section 470.036(1)(t) (Embalming a deceased human body without first obtaining written or oral permission) had been demonstrated.

   That conclusion is inconsistent with the following language in the Recommended Order:

   
   

6. To the extent, that the Conclusions of Law contained in the attached Recommended Order are not inconsistent with the foregoing, they are adopted and incorporated by reference herein.

   
   

7. Based upon the foregoing, the Respondents are in violation of 470.036(1)(b), refusing to surrender promptly the custody of a dead body and 470.036(1)(n), F.S., failing to have a price list as required by 470.035, F.S.

It is therefore ORDERED that an administrative fine in the amount of

$500.00 be assessed against the Respondents to be paid to the Executive Director of the Board within 30 days from the effective date of this Order.

Pursuant to 120.59(4), F.S. the Respondent(s) are hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of the notice of appeal with the District Court of Appeal within 30 days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 31st day of October, 1984.

GEORGE FEASTER

Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Bernard Poitier and Poitier Funeral Home, 2300 N.W. 62nd Street, Miami, Florida 33147, this 6th day of November, 1984.

R. C. Blanton Executive Director

cc: Gus Efthimiou, Esquire Joseph Lawrence, Esquire Jeffrey Miller, Esquire

Docket for Case No: 83-003763

Orders for Case No: 83-003763